ALIGANTE & WAUGH

[2013] FamCA 619

FAMILY COURT OF AUSTRALIA

ALIGANTE & WAUGH [2013] FamCA 619

FAMILY LAW – CHILDREN – Where the father sought an order that the mother be restrained from removing the child from the Commonwealth of Australia – Where the mother filed a Response and Affidavit but was not present in court – Where the mother sought to take the child to a Japan – Where previous parenting orders provided for either party to travel with the child overseas provided certain conditions were met including the liberty to apply to the court on 7 days notice for orders preventing travel or imposing conditions of travel to a non-Hague Convention Country – Where Japan’s parliament has recently approved the Hague Convention and has set a target date of March 2014 for final ratification of the law but is yet to pass domestic legislation to give effect to the Hague Convention – Where no equivalent of a central authority has yet been established in Japan – Order made restraining the mother from travelling with the child to Japan.

Family Law Act 1975 (Cth)

APPLICANT: Mr Aligante

RESPONDENT: Ms Waugh

FILE NUMBER: SYF3 3075 of 2004

DATE DELIVERED: 11 June 2013

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Stevenson J

HEARING DATE: 7 June 2013

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Aligante appeared on his own behalf

SOLICITOR FOR THE RESPONDENT: No appearance of or on behalf of the respondent

Orders

1. That the mother is restrained from removing the child J born on … 2002 from Australia for the purpose of travel to Japan.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Aligante & Waugh has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF 3075 of 2004

Mr Aligante

Applicant

And

Ms Waugh

Respondent

REASONS FOR JUDGMENT

the proceedings

1. On 28 May 2013 the father, Mr Aligante, filed an Application in a Case by which he sought that the mother, Ms Waugh, be restrained from removing their child J born in 2002 from the Commonwealth of Australia.  On 5 June 2013 the mother filed a Response and Affidavit, in which she indicated inter alia that she would be in Victoria on the return date of 7 June 2013 and would not be present in court.  The mother gave no indication that she sought an adjournment of the hearing of the father’s application.  The mother sought a number of orders which would enable her to travel outside Australia with the child.

2. In their affidavits both parents indicted that the mother has booked tickets for herself and the child to Japan with the departure date of 17 June 2013.  The mother then proposed to continue to Italy and return to Australia on 15 July 2013.

3. Orders made on 12 January 2012 gave provision for each parent to travel overseas with J on certain conditions.  Orders 14 and 15 provided as follows: 

   14.      Subject to order 15, and on one occasion each year, each parent may take [J] on an overseas holiday or an extended holiday away from Sydney, within Australia, on the following conditions:

   14.1the parent taking [J] on such an extended holiday will give the other parent 60 days written notice of the intended date of departure;

   14.2a notice given first in time has priority;

   14.3the intended duration of travel not exceed 4 weeks, two of which are to include the allocated NSW school holiday period;

   14.4the parent taking [J] on an extended holiday will provide the other parent with make up time in the following school holidays equivalent to the one week that the non-travelling parent has lost as a result of the arrangement;

   14.5that any intended overseas destination be a country which is a party to the Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”) and in that event, the parent intending to travel, within 21 days of leaving Australia provide the other parent with:

   14.5.1the travel itinerary of the parent and child;

   14.5.2contact details whilst overseas;

   14.5.3the purchase and presentation of return air tickets.

   14.6unless otherwise agreed in writing, that if any intended overseas destination is a non-Hague Convention country, the non-travelling parent shall have liberty to apply to the Court, on 7 days notice, for orders preventing that travel or imposing conditions on that travel.

   15.Order 14 is to commence immediately for the father and at the beginning of 2013 for the mother.

4. In his affidavit the father set out his concerns as to the mother’s proposal to take the child to Japan.  Primarily his concern was that Japan is not a signatory to the Hague Convention and that he has no financial capacity to litigate in that country for the return of the child to Australia, in the event that the mother fails to return him.

5. A judgment of 12 January 2012 read in part: 

   30.That relationship however has to be nurtured having regard to the risks to [J] of psychological damage flowing from the unshakeable beliefs held by the mother about the risks posed to [J] by the father.

   31.[Dr W] is of the opinion that the mother’s beliefs were unlikely now to be moved by any further counselling.”

   35.[Dr W] concludes that the mother’s beliefs about the father are unshaken, notwithstanding the hearing that has taken place.  The mother in the intervening period has seen a number of professionals, including somebody whom she saw to test whether or not her memory was in any way defective.  The question is not whether or not the mother will ever accept what I have found to be the fact; clearly she believes I am wrong.  The question is whether or not she can accept that looking forward, it is in [J’s] best interests to have a meaningful relationship with both his parents.  That is going to be difficult for the mother.  She has an underlying belief that [J’s] father poses a risk to him, certainly physically, and probably sexually.

6. Against this background I find it unsurprising that the father is very concerned that the mother will not return the child to Australia.  Unsurprisingly he is suspicious as to her motive in electing to travel to a non-Hague Convention country on her initial trip outside Australia with the child following the orders of 12 January 2012. 

7. In my view, the mother’s affidavit evidence proffered no real comfort to the father.  She deposed that she has no intention of remaining in Japan but made no proposal for any security for the child’s return.  Curiously, she deposed that she wishes to visit friends in Japan, where she lived for two and a half years, but whom she last saw in approximately 2001.  Obviously J has never met these people.

8. The mother proposed an alternative arrangement whereby J would travel from Sydney to Rome as an unaccompanied minor.  Neither she nor the father found this proposal acceptable from J’s point of view.

9. The mother contended that Japan “recently became a signatory to the Hague Convention after being passed by the lower and upper houses of parliament”. It is true that this issue was before the Japanese parliament and approved by both houses on 22 May 2013.  It seems that the parliament set March 2014 as the target date for implementation of domestic legislation to give effect to the Convention.  It will be necessary for the equivalent of a central authority to be established before any protection is afforded to a parent in the position of Mr Aligante.

10. In all of these circumstances, I was not prepared to take the risk that the mother would fail to return the child to Australia.  I have thus ordered that she be restrained from removing him from Australia for the purpose of travel to Japan.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson delivered on 11 June 2013.

Associate:

Date:              11 June 2013